Volume 37 — North Carolina Court of Appeals Reports

Mortgages and Deeds of Trust 32.1 — purchase money deed of trust — statute prohibiting deficiency judgment — action on note The statute prohibiting a deficiency judgment after the foreclosure of a purchase money deed of trust, G.S. <cross_reference>45-21.38</cross_reference>, has no application to a suit on the underlying obligation where there has been no foreclosure.

Criminal Law 114.4 — jury instructions — evidence that defendant confessed — expression of opinion In a prosecution for second degree murder where defendant admitted firing the gun that killed decedent but contended that he was justified in acting in defense of himself and his place of habitation, the trial court expressed an opinion in violation of G.S. <cross_reference>1-180</cross_reference> when the court<page_number>Page 44</page_number> instructed that "there is evidence which tends to show that the defendant confessed that he committed the crime charged in this case."

Prostitution 1 — occupying room for immoral purposes — statute vague and in definite That portion of G.S. <cross_reference>14-186</cross_reference> which states that it is a misdemeanor for persons of the opposite sex to occupy the same bedroom in any hotel or public boarding house for any immoral purpose is too vague and indefinite to comply with constitutional due process standards.

1. Rules of Civil Procedure 37 — failure to appear for deposition — sanctions — willfulness There is no requirement that the court find that the failure to appear for a deposition was willful before the court may impose sanctions for failure to appear. G.S. <cross_reference>1A-1</cross_reference>, Rule 37 (d). 2. Rules of Civil Procedure 37 — failure to appear for deposition — default judgment The trial court did not abuse its discretion in granting defendant credit union judgment on its cross-claim against the individual defendant as a sanction for the failure of the individual defendant to appear for a deposition to be taken by the credit union where the individual defendant was given proper notice of the deposition, neither the individual defendant nor her counsel appeared at the sanction hearing, and no explanation for her failure to appear was ever before the court. 3. Uniform Commercial Code 20 — acceptance of automobile — action for purchase price — peremptory instructions There was no question as to whether defendant accepted an automobile sold to her by plaintiff, and the trial court properly gave peremptory instructions to the jury in plaintiff's favor in an action to recover the purchase price, where plaintiff showed the sale and delivery of the automobile at an agreed price, and defendant admitted that she took the automobile, executed the papers connected with the sale, and later refused to pay the purchase price. 4. Automobiles 6.5 — mileage — insufficient evidence of fraud No question of fraud in the sale of an automobile because of its mileage was raised where defendant's evidence showed only that the odometer was not working properly shortly after the sale, there was no evidence that the mileage figure shown on the odometer was not the actual mileage, and plaintiff never represented that the automobile had fewer miles on it. 5. Automobiles 6.2; Uniform Commercial Code 24 — revocation of acceptance of automobile — odometer not working — broken fan belt An automobile buyer had no right under G.S. <cross_reference>25-2-608</cross_reference> to revoke her acceptance of the automobile because (1) the odometer was not working when the car was delivered to her or (2) the fan belt broke two days after the delivery, since there was no evidence that the mileage shown on the odometer was not the actual mileage or that she was prevented from discovery of the actual mileage by the seller's assurances, and since the breaking of the fan belt was insufficient to show such nonconformity as would allow her to revoke her acceptance.<page_number>Page 122</page_number> 6. Automobiles 6.5 — damages under Vehicle Mileage Act Defendant was not entitled to damages under the Vehicle Mileage Act G.S. <cross_reference>20-340</cross_reference> et seq., where there was only a technical failure to comply with the Act in that the mileage statement was not completely filled out, defendant offered no evidence of an intent to defraud, and there was no evidence that the mileage shown on the odometer was incorrect.

1. Assault and Battery 11.3 — assault on police officer — allegations required in warrant A warrant charging a violation of G.S. <cross_reference>14-33</cross_reference> (b)(4) is sufficient if it alleges only in general terms that the officer was discharging or attempting to discharge a duty of his office at the time the assault occurred without alleging specifically exactly what that duty was, and the decision in State v. Mink <cross_reference>18 N.C. App. 346</cross_reference>, to the contrary is overruled. 2. Assault and Battery 14; Arrest and Bail 6 — arrest of defendant — assault on officers — arrest constitutional and legal — no nonsuit of assault charges Where a probation officer had probable cause to believe that defendant had violated a condition of probation, the officer's arrest of defendant was constitutional, and the warrantless arrest was also legal, since G.S. 15-200 and -205, read together, give a probation officer the authority to arrest a probationer under his supervision for violations of conditions of probation without a warrant or other written document; therefore, the trial court properly denied defendant's motion for nonsuit on assault charges, since defendant's contention that he was entitled to resist the officers with reasonable force because his arrest was both unconstitutional and illegal was without merit.

1. Evidence 40; Sales 14.1 — clothes dryer — negligent manufacture — breach of warranty — procedures of manufacturer — personal knowledge of witness In an action to recover for the negligent manufacture of a clothes dryer and for breach of warranties of merchantability and fitness of the dryer, the supervisor of quality control for defendant manufacturer was properly allowed to testify as to who made the allegedly defective thermostats for the manufacturer, the operating temperature of the thermostats, testing and inspection procedures employed by the manufacturer, and whether the thermostats and dryer were UL approved, where the supervisor was testifying from his own personal knowledge. 2. Witnesses 1; Trial 15 — inconsistent testimony — competency of witness- denial of voir dire — harmless error Error, if any, in the trial court's denial of a motion to conduct a voir dire to determine a witness's personal knowledge of defendant's testing procedures about which he testified, made after the witness gave inconsistent testimony as to his familiarity with the procedures, was rendered harmless when the witness on redirect examination testified that he had set up the testing procedures which he described and had observed their performance. 3. Evidence 49.1 — expert testimony — hypothetical question — photographs and testimony presented by plaintiff Defendants' expert was properly allowed to answer a hypothetical question which included his opinion from an examination of photographs taken by plaintiffs' expert, testimony by plaintiffs' expert, and testimony by the female plaintiff. 4. Evidence 49 — expert opinion — hypothetical question — explanation of opinion The trial court did not err in permitting defendants' expert, who had given his opinion in response to a hypothetical question, to explain how he arrived at his opinion. 5. Negligence 37 — instructions — "alleged and contended" It was not error for the court to fail to instruct that plaintiffs "alleged and contended" certain negligence. 6. Sales 22 — absence of fail-safe device on clothes dryer — no negligence by manufacturer The trial court did not err in failing to instruct the jury that the failure of the manufacturer of a clothes dryer to install a "fail-safe" device on the dryer could constitute negligence.<page_number>Page 144</page_number> 7. Sales 23 — clothes dryer — no dangerous instrumentality The trial court did not err in failing to instruct that a clothes dryer was a dangerous instrumentality and to instruct on the duties of a defendant who manufactures such a dangerous instrumentality. 8. Sales 22 — fire in clothes dryer — vapors from outside dryer — instructions — inference from evidence In an action to recover damages caused by a fire in a clothes dryer, the trial court's instruction that defendant manufacturer was not liable if plaintiffs' damages were caused by volatile vapors or another substance being pulled into the dryer from an outside source was supported by legitimate inferences from the evidence presented although there was no direct testimony of any observation of such vapors or substance.

1. Seal 1 — printed word "Seal" The printed word "Seal" following a person's signature is sufficient to function as his seal only if he intended to adopt it as his seal. 2. Seal 1 — presumption of adoption of seal When a seal or the word "Seal" appears beside the name of the maker of a note where the seal belongs, a presumption arises that the maker adopted the seal or the word "Seal" as his seal, and the burden falls on the maker to prove that he did not adopt the seal as his seal. 3. Seals 1 — adoption of seal — parol evidence — genuine issue of fact Parol evidence was admissible to determine whether the maker of a note intended to adopt the printed word "SEAL" in parentheses as his seal, and where the maker offered evidence on a motion for summary judgment that he did not adopt the word "SEAL" as his seal, there was a genuine issue of fact as to whether the maker adopted that word as his seal and, thus, whether the note was a sealed instrument subject to the ten-year statute of limitation.

Pleadings 34; Rules of Civil Procedure 15.1 — refusal to allow amendment to add party defendant In an action against a corporation to recover damages based on the negligent manufacture of a motorcycle, the trial court did not abuse its discretion in refusing to allow plaintiff to amend his complaint to add a second corporation as a party defendant where plaintiff's claim against the second corporation would not "relate back" to the original pleading under G.S. <cross_reference>1A-1</cross_reference>, Rule 15 (c) and would he barred by the statute of limitations.

1. Constitutional Law 28; Burglary and Unlawful Breakings 1; Larceny 1 — due process — equal protection — constitutionality of statutes G.S. <cross_reference>14-54</cross_reference>, which makes it a felony to break or enter any building with intent to commit any felony or larceny therein, and G.S. <cross_reference>14-72</cross_reference>, which makes larceny of property of the value of $200 or less a misdemeanor except in three instances, do not violate the equal protection or due process provisions of either the State or Federal Constitutions, since equal protection of the law is not denied by a statute prescribing the punishment to be inflicted on a person convicted of a crime unless it prescribes different punishment for the same acts committed under the same circumstances by persons in like situations, and these statutes meet this test because all persons who fall under the terms of the statutes are subject to the same sentence; and the challenged statutes are reasonably related to valid legislative goals and therefore meet the test of due process. 2. Criminal Law 142.3 — conditions for work release — restitution — supporting evidence required G.S. <cross_reference>148-33.2</cross_reference> (c) and G.S. <cross_reference>15A-1343</cross_reference> (b)(6) together require that any order or recommendation of the sentencing court for restitution or restoration to the aggrieved party as a condition of attaining work-release privileges must be supported by the evidence, and the sum ordered or recommended must be reasonably related to the damages incurred; in this prosecution for breaking or entering and larceny where the evidence tended to show that the victims' home was totally ransacked, dresser drawers were broken, and a gun and hunting knife were not recovered, such evidence supported restitution in the amount of $500 ordered by the court. 3. Criminal Law 142.3 — conditions for parole — sentencing court's recommendations not mandatory The Parole Commission may, but is not required to, implement the recommendation of the sentencing court for restitution as a condition of parole. G.S. <cross_reference>148-33.2</cross_reference> (b). 4. Criminal Law 142.3; Constitutional Law 40 — parole — condition that defendant reimburse State for court-appointed counsel Under the provisions of G.S. <cross_reference>148-33.1</cross_reference> the Department of Corrections may, but is not required to, make deductions from the earnings of a prisoner on work-release and pay to the sentencing court for reimbursement to the State the amount so ordered by the court to reimburse the State for attorney fees paid on behalf of said prisoner, and under the provisions of G.S. <cross_reference>15A-1374</cross_reference> the Parole Commission may, but is not required to, implement the recommendation of the sentencing court and impose as a condition of parole that the prisoner reimburse the State for counsel fees.<page_number>Page 235</page_number>

1. Pleadings 33.3 — denial of amendment to conform to proof — no implied consent for amendment In an action to reform a provision of the contract of a professional basketball player based on an alleged mutual mistake, plaintiffs' motion to amend their complaint to conform to evidence of fraud was properly denied where (1) there was no evidence from which an inference of fraud could be drawn, and (2) defendant's failure to object to the evidence plaintiffs contend supports the issue of fraud did not amount to his implied consent to amend the pleadings to allow the issue of fraud since the evidence went to the issue of mutual mistake which was raised by the pleadings. G.S. <cross_reference>1A-1</cross_reference>, Rule 15 (b). 2. Contracts 26; Reformation of Instruments 6 — reformation of contract — testimony as to "agreement" In an action to reform a provision of a written contract for mutual mistake, the trial court did not err in refusing to allow plaintiffs' witnesses to testify that an "agreement" other than the written contract had been reached and in instructing the jury to consider the word "agreement" only as it related to preparation of a final draft for adoption of the parties since whether an agreement was reached was an ultimate issue to be determined by the court and jury. 3. Appeal and Error 49 — exclusion of evidence — similar evidence admitted — harmless error In an action to reform the pension provision in the contract of a professional basketball player, error, if any, in the exclusion of the notes of defendant's negotiating agent purportedly showing that defendant's pension was to be equivalent to the NBA pension plan then in effect was harmless where the same evidence was presented to the jury in the deposition of another witness.<page_number>Page 241</page_number>

Taxation 38 — payment of tax — no timely request for refund State income tax paid by plaintiff on unemployment compensation could not be recovered where plaintiff paid voluntarily and without compulsion, even if the taxes were levied unlawfully, in the absence of plaintiff's demand for refund within thirty days after payment, pursuant to G.S. <cross_reference>105-267</cross_reference>.

1. Constitutional Law 10.2 — judicial review of statute — no inherent power in courts A court of this State has no inherent power to review acts of the General Assembly and to declare invalid those which the court disapproves or, upon its own initiative, finds to be in conflict with the Constitution; rather, the authority of a court to declare a legislative act unconstitutional arises from, and is an incident of, its duty to determine the respective rights and liabilities or duties of litigants in a controversy brought before it by the proper procedure. 2. Constitutional Law 10.2 — conflict between statute and Constitution If there is a conflict between a statute and the Constitution, the court must determine the rights and liabilities or duties of the litigants before it in accordance with the Constitution, because the Constitution is the superior rule of law in that situation.<page_number>Page 303</page_number> 3. Physicians, Surgeons and Allied Professions 5.2 — denial of license as practicing psychologist — judicial review — constitutionality of statutes not presented Where the only claim for relief asserted by petitioner was that he be granted a license under the Practicing Psychologist Licensing Act, no question as to the constitutionality of sections of that Act was presented to the court upon review of the decision of the Board of Examiners of Practicing Psychologists denying a license to petitioner, since one may not question the constitutionality of the statutes upon which he bases his claim. 4. Physicians, Surgeons and Allied Professions 5.2 — licensing of practicing psychologist — doctoral degree — primarily psychological studies The requirement of G.S. <cross_reference>90-270.11</cross_reference> (a)(1)c that an applicant for a license as a practicing psychologist must have received his doctoral degree "based on a program of studies the content of which was primarily psychological" was neither vague nor uncertain but called for the application of objective standards which bore a rational relationship to the purposes of the Practicing Psychologist Licensing Act and furnished sufficiently clear guidelines to control the Board of Examiners of Practicing Psychologists in exercising its licensing and rule-making functions. 5. Physicians, Surgeons and Allied Professions 5.2 — licensing of practicing psychologist — rule of Board of Examiners — doctoral degree not in psychology The Board of Examiners of Practicing Psychologists did not exceed the rule-making power delegated to it by G.S. <cross_reference>90-270.9</cross_reference> in adopting a rule requiring that an applicant's doctoral degree, if other than one based on a Ph.D. program in psychology at an accredited educational institution, must have been based on a program of studies which was psychological in nature with a minimum of sixty hours of graduate study in standard psychology courses, and requiring an applicant who claimed that course work done by him in departments other than in psychology should be counted in meeting the sixty-hour requirement to provide evidence that such courses were psychological in nature. 6. Physicians, Surgeons and Allied Professions 5.2 — denial of license as practicing psychologist — doctoral degree not in psychology — absence of necessary psychology courses The evidence supported findings by the Board of Examiners of Practicing Psychologists that certain graduate courses taken by an applicant who had a Ph.D. in Guidance and Counseling were not psychological in nature and that the applicant failed to carry his burden of showing that another course was psychological in nature, and the Board's findings supported its conclusion that the applicant did not have the necessary sixty hours of graduate study in standard psychology courses.

1. Jury 6.3 — examination of prospective jurors — questions about performance — objections properly sustained Where defense counsel asked one prospective juror if he would permit anything to influence him in his decision and another prospective juror if he would allow the fact that a considerable number of jurors were voting differently from him to influence him to change his verdict, the trial court properly sustained the State's objections, since the questions could not reasonably be expected to result in answers bearing upon the jurors' qualifications but instead would tend to commit the jurors to a decision on the performance of their duties prior to an instruction by the court with regard to their proper performance pursuant to law. 2. Jury 7.10 — policeman as prospective juror — knowledge of defendant's case — no challenge for cause The trial court did not err in denying defendant's challenge for cause of a prospective juror who was a police officer and who had heard defendant's case discussed by other police officers since it is not required that any individual must be excused for cause solely by virtue of the nature of his employment; the prospective juror clearly indicated that he could base his determination solely upon the evidence and the law without being swayed by anything else; and the court offered defendant the opportunity to examine the witness further, but no additional questions were asked.<page_number>Page 316</page_number> 3. Searches and Seizures 14 — consent to search vehicle — failure to find no duress — specific finding not required Evidence was sufficient to support the trial court's conclusion that a search of defendant's automobile was made with his consent which was given at a time when he understood his rights, was sober, was not frightened and understood the questions asked him, and the court did not err in failing specifically to find and conclude that the voluntary consent was given without duress, since the court's finding that defendant did not appear to be frightened when he gave consent and that he gave consent voluntarily was sufficient to support a conclusion that consent was given without duress. <block_quote> 4. Criminal Law 158.2 — argument omitted from record — presumption of propriety When a portion of the argument of either counsel is omitted from the record on appeal, the arguments are presumed proper.</block_quote> <block_quote> 5. Criminal Law 113.1 — jury instructions — misstatement of evidence — no reversible error In a homicide prosecution where the trial court charged that one of the State's witnesses had testified that soil samples taken from an area near the victim's body were "the same" as soil samples taken from defendant's shoes, but the witness had in fact testified only that it was highly likely that the samples came from the same source, such inadvertent and slight inaccuracy in recapitulating the evidence was not reversible error, since later in the charge the court specifically instructed the jury that they were to rely upon their own recollection of the evidence and to disregard the court's recollection if the two differed.</block_quote>

1. Contracts 29.3 — breach of contract — special or consequential damages To recover special or consequential damages in a breach of contract action, plaintiff must prove that such damages were in fact caused by the breach, that the amount of such damages can be proved with a reasonable degree of certainty, and that the damages were within the contemplation of the parties at the time they contracted. 2. Contracts 29.3 — breach of separation agreement provision for payment of taxes — no special damages Defendant husband's breach of a provision of a separation agreement that he would pay any difference in the plaintiff wife's income taxes resulting from her inability to deduct counsel fees paid to her attorneys, which led to a lien on her home and its advertisement for sale, was not the breach of a "personal" contract provision for which the wife could recover special damages for mental anguish; nor could the wife recover special damages for loss of reputation in the community allegedly resulting from such breach. 3. Contracts 29.3; Damages 12.1 — breach of contract — punitive damages Plaintiff's allegation that defendant wrongfully and willfully breached a provision of a separation agreement requiring him to pay any increase in plaintiff's income taxes resulting from her inability to deduct counsel fees paid to her attorneys was insufficient as a basis for punitive damages. 4. Process 19 — abuse of process — insufficient allegations Plaintiff's complaint was insufficient to allege abuse of process where it sufficiently alleged ulterior purpose but failed to allege any bent or inappropriate act in an otherwise proper proceeding. 5. Malicious Prosecution 8 — termination in plaintiff's favor — insufficient allegation Plaintiff's complaint was insufficient to state a claim for relief for malicious prosecution where it failed to allege termination of the prior action in plaintiff's favor but alleged only that "the action of the defendant against the plaintiff was dismissed by the court."

1. Criminal Law 66.6 — lineup — different color pants worn by defendant Even if the record supported defendant's contention that he wore brown pants in a lineup while other participants wore blue pants, such fact alone would not render the lineup procedure impermissibly suggestive. <block_quote> 2. Criminal Law 66.5 — lineup — right to counsel — counsel on other side of one-way mirror Defendant was not denied the presence of counsel at a lineup by the fact that his attorney was on the other side of a one-way glass with other persons who viewed the lineup.</block_quote> 3. Criminal Law 66.12 — in-court identification — viewing defendant at preliminary hearing after lineup A robbery victim's in-court identification of defendant was not tainted by the victim's viewing of defendant at his preliminary hearing where the preliminary hearing was held after a proper lineup in which the victim had identified defendant. <block_quote> 4. Searches and Seizures 43 — seized evidence — waiver of constitutional objection — failure of record to show motion to suppress Defendants waived any right to challenge on constitutional grounds the admission of evidence seized during a search of one defendant's motel room where the record failed to show whether defendants moved to suppress<page_number>Page 341</page_number> the seized evidence pursuant to Art. 53 of G.S. Ch. 15A, and defendants' general objection to the admission of the seized evidence raised only the question of whether the evidence was relevant.</block_quote> 5. Robbery 4.6 — participation in robbery — sufficiency of evidence The State's evidence was sufficient to support defendant's conviction of armed robbery where it tended to show that defendant was riding in the back seat of a codefendant's car while in flight from the robbery scene; the codefendant was identified as a participant in the robbery; defendant's fingerprint was on a cigarette pack found in the getaway car; defendant fled on foot with other occupants of the car when it was stopped by the police; and a .22 caliber rifle was prepared for use in the robbery in a motel room registered in defendant's name. 6. Criminal Law 134.4 — youthful offender — sentencing as adult — finding required The trial court erred in sentencing defendants who were under the age of 21 at the time of conviction as adult offenders without first finding that they would not benefit from supervision and treatment as "committed youthful offenders." G.S. 148-49.4.

1. Parent and Child 6 — child custody — right of natural parent The natural parent is presumed to be the appropriate custodian of his or her child as opposed to third persons and should not be deprived of custody merely because the child could be better cared for in a material sense by others. <block_quote> 2. Parent and Child 6.3 — child custody — natural parent — award to third party The trial judge is not required to find a natural parent unfit for custody as a prerequisite to awarding custody to a third person, since a natural parent may be a fit and proper person to care for the child while all other circumstances dictate that the best interests of the child would be served by placing custody in a third party.</block_quote> <block_quote> 3. Parent and Child 6.3; Infants 6.3 — award of custody to natural parent — insufficient findings The trial court's findings failed to support its conclusion that the natural mother was a fit and proper person to have custody of her child and that it would be in the best interest of the child that his permanent custody be placed eventually with his natural mother where the court failed to make findings as to the circumstances surrounding the mother's separation from the child's father and her leaving of the child with the father in North Carolina when she returned to Minnesota prior to the father's death, her failure to make any effort to learn the whereabouts of the child for over five months after the father's death although she had been notified of the death, and the mother's living quarters, employment, earnings and other circumstances in Minnesota.</block_quote><page_number>Page 365</page_number>

1. Partition 7.2 — value of property — findings by commissioners — appellate review The appellate court will not review findings of commissioners, approved by the superior court, as to the value of property in partitioning proceedings. 2. Partition 7 — division of property without injury to cotenants — sufficiency of evidence The trial court's finding in a partitioning proceeding that the property could be divided without injury to the cotenants, with owelty of $70,450 charged to one parcel, was supported by competent evidence, although the evidence was conflicting.<page_number>Page 389</page_number> 3. Partition 7 — slight diminution in value by partition A $2,100 diminution in value when property worth $280,000 was partitioned, or $1,050 per cotenant, was not a substantial or material impairment of the rights of the cotenants in the property so that an actual partition would be unconscionable.

1. Master and Servant 11.1 — covenant not to compete — consideration sufficient Where a new contract containing a covenant not to compete was entered into annually by plaintiff employer and defendant employee, the new contract<page_number>Page 411</page_number> bound the employer for an additional year, and this detriment to him was sufficient consideration to support the covenant not to compete. 2. Master and Servant 11.1 — covenant not to compete — requirements for enforceability For restrictive covenants not to engage in competitive employment to be enforceable, they must be in writing, supported by valuable consideration and reasonable as to terms, time and territory. 3. Master and Servant 11.1 — covenant not to compete — terms reasonable Terms of defendant's covenant not to compete were not unreasonable where defendant was prohibited from engaging in the business of teaching dancing or soliciting dancing pupils in an area within a 25 mile radius of plaintiff's business and such restriction was to last for a period of one year. 4. Injunctions 13.2 — preliminary injunction — sufficiency of showing of irreparable injury In an action by plaintiff dance studio to enforce a covenant not to compete, plaintiff showed the probability of irreparable harm sufficient to entitle it to a preliminary injunction where plaintiff showed a confidentiality between it and its customers and that defendant's actions betrayed that confidence; and it showed the loss of one patron to defendant's new employer and the possibility of loss of others.

Searches and Seizures 11 — warrantless search of car — information from previously unknown informant — independent verification by officer — informant's admission of crime An officer had probable cause to conduct a warrantless search of defendant's car for marijuana based on information received from a previously unknown informant where the informant told the officer that he had purchased marijuana and LSD an hour earlier in defendant's car, he had taken the LSD in defendant's presence and become sick, after leaving defendant's car he had asked a deputy sheriff for a ride to the hospital, and marijuana would be found under the seat and in the glove compartment of defendant's car; the informant described defendant's physical appearance, dress, and automobile in detail, and gave the license number and location of the automobile; the deputy sheriff corroborated the informant's having stopped him for a ride to the hospital; the officer personally observed that the informant was nervous and perspiring, which would tend to verify that the informant had taken a hallucinogenic drug the officer independently verified the appearance and dress of defendant and the location, model, color and license number of defendant's car, and the credibility of the informant was enhanced by his admission that he had committed a criminal offense by buying marijuana and LSD.<page_number>Page 417</page_number>

Negligence 54 — invitee at hospital — fall on ramp — contributory negligence In an action to recover for injuries received when plaintiff slipped and fell on a concrete ramp leading from defendant hospital's emergency room, the trial court properly submitted an issue of plaintiff's contributory negligence to the jury where the evidence showed that such defects as may have existed in the ramp were all of a nature which should have been readily apparent to anyone who looked to see what was there to be seen; the evidence showed that plaintiff had used the ramp many times and had had the opportunity to be thoroughly familiar with it before her fall; and plaintiff testified that she "did not pay any attention to the ramp that day."

1. Automobiles 38, 78; Highways and Cartways 3 — SBI agent pursuing vehicle — violation of rules of road — no contributory negligence as matter of law In an action to recover for injuries suffered by plaintiff SBI agent when his automobile collided with a pickup truck while in pursuit of defendant, who had just robbed a bank, plaintiff's evidence that the accident occurred when plaintiff attempted to negotiate a curve at a high rate of speed while his vehicle was approximately 50% across the center line did not show that plaintiff was contributorily negligent as a matter of law, since law enforcement officers are not to be deemed negligent merely for failure to observe the rules of the road while engaged in the pursuit of lawbreakers; however, such evidence supported the submission of an issue of contributory negligence to the jury. 2. Automobiles 90.1 — SBI agent in pursuit of vehicle — violation of rules of road — instructions on contributory negligence In an action to recover for injuries suffered by plaintiff SBI agent when his automobile collided with a pickup truck while in pursuit of defendant after defendant had robbed a bank, the trial court erred in instructing the jury that plaintiff was contributorily negligent if he violated rules of the road relating to reasonable lookout, exceeding safe speed, passing oncoming vehicles on the right, and driving over the center line, since a law enforcement officer is not deemed negligent merely for failure to observe rules of the road while engaged in the pursuit of lawbreakers.<page_number>Page 429</page_number>

1. Appeal and Error 24, 39.1 — record on appeal — absence of assignments of error — certification not timely An appeal was subject to dismissal where the record on appeal contained no assignments of error as required by Appellate Rule 19 (c) and the record was not certified within 10 days after it was settled as required by Appellate Rule 11 (e). 2. Physicians, Surgeons and Allied Professions 18 — leaving scalpel tip in patient's body — insufficient evidence of negligence — inapplicability of res ipsa loquitur In an action based on the alleged negligence of defendant orthopedic surgeon in leaving the tip of a scalpel blade embedded in plaintiff's back at the conclusion of disc surgery, the doctrine of res ipsa loquitur was inapplicable, and plaintiff's evidence was insufficient to show negligence on the part of defendant, where such evidence tended to show that a scalpel blade is normally used to open the covering of the disc;<page_number>Page 492</page_number> defendant surgeon chose a No. 15 scalpel rather than the No. 10 usually used because he knew the disc had hardened and there was more scarring than normally existed; defendant exerted the necessary pressure and the tip of the scalpel broke; defendant attempted to find the tip, but in the exercise of his best medical judgment, stopped the search after some 30 minutes because he was fearful of excessive bleeding which would be difficult to control in that area and because he decided that the tip was in an area where it would not move and could not cause harm to the plaintiff; plaintiff was thereafter advised of the situation; and an x-ray affirmed defendant's conclusion as to the location of the tip.

1. Infants 5 — child outside State — jurisdiction of court in custody proceeding In a child custody proceeding the trial court had jurisdiction over the child, though she was not present in the State, since the court in a child custody proceeding has continuing jurisdiction to do anything necessary at any time to supervise the welfare of the minor child, though the child is not actually before the court. G.S. <cross_reference>50-13.5</cross_reference> (c)(3). 2. Infants 6.2 — motion to set aside child custody order — visitation rights not considered In a hearing on plaintiff's motion to set aside a child custody order, the trial court did not err in refusing to consider visitation rights, since such consideration would be a modification of the prior order's grant of exclusive custody to defendant; the court could modify custody or visitation only upon a showing of changed circumstances and on adequate motion in the cause; and plaintiff's motion to set aside the custody order was not an adequate motion for this purpose. 3. Rules of Civil Procedure 60 — child custody order — final order from which relief may be had An order awarding custody of the parties' child to defendant was a "final order" under G.S. <cross_reference>1A-1</cross_reference>, Rule 60 (b), though the order could be changed subsequently upon a proper showing of change of circumstances under G.S. <cross_reference>50-13.7</cross_reference>. 4. Rules of Civil Procedure 52, 60 — motion to set aside judgment for excusable neglect — findings not required A court need not make findings as to meritorious defense after a hearing on a motion to set aside a judgment for excusable neglect when it concludes there was no excusable neglect shown, but it would be the better practice to make such findings. 5. Rules of Civil Procedure 60.2 — motion to set aside judgment — excusable neglect — neglect of attorney not imputed to plaintiff In a hearing on plaintiff's motion to set aside a child custody order on the ground of excusable neglect, the trial court's findings that plaintiff had been served with process, was notified of the date of the hearing, employed and conferred with counsel, but did not appear at the hearing were insufficient to support the court's conclusion that there was no excusable neglect, since the<page_number>Page 544</page_number> evidence showed that the case did not appear on the printed calendar but was handwritten onto the add-on calendar by a deputy clerk; it was the duty of plaintiff's attorney to notify the court properly that he represented plaintiff and to determine whether the hearing was to be held on the date specified in the notice served upon her; and the attorney's negligence in failing to perform this duty should not be imputed to plaintiff.

1. Arbitration and Award 1 — arbitration provision — construction A provision of a joint venture agreement stating that "Any and all disputes of any kind under or in connection with this Agreement will be submitted to" a named person "for absolute and final decision" did not pertain only to on-the-job management and administrative decisions during the course of the work but required that any dispute arising under the joint venture agreement be resolved in binding arbitration, including any amount allegedly owed to plaintiff by defendant under the terms of the agreement. 2. Arbitration and Award 3 — arbitration provision — connection of named arbitrator with one party — knowledge by other party A provision for binding arbitration in a joint venture agreement between plaintiff and defendant was not unenforceable as violating the public policy of this State and the Federal Arbitration Act because the person named in the agreement to be arbitrator was the president of defendant's parent company where plaintiff knew of the nature of the relationship between the named arbitrator and defendant at the time it entered the agreement with defendant.

1. Deeds 21 — covenant to build or reconvey — validity It would appear competent for a grantee in a deed of real property to agree either to build upon the property within a specified time or to reconvey the property to the grantor at the end of such time. 2. Deeds 18 — conditions and covenants in deed — binding effect on grantee A grantee, by acceptance of a deed, becomes bound by conditions and covenants therein even though he did not sign the deed. 3. Equity 2 — laches — burden of proof Laches is an affirmative defense; the party pleading it bears the burden of proof. 4. Deeds 21; Equity 2.2 — specific performance of covenant to reconvey — no laches Plaintiff's action for specific performance of a covenant in a deed to reconvey the land conveyed therein to plaintiff if defendant failed to build on it within a certain time was not barred by laches where plaintiff delayed instituting the action for three years and three months; there was no showing that plaintiff's delay had resulted in a change in condition of the land or in the relations of the parties which would make it unjust to permit prosecution of the suit; defendant had been notified on two occasions or plaintiff's intention to enforce the covenant; the covenant did not specify a time within which the reconveyance was to be accomplished; and there was no showing that the length of the delay was unreasonable. <block_quote> 5. Equity 2.2 — laches — defendant out of State Plaintiff's delay in instituting suit on a covenant in a deed to build or reconvey cannot be excused on the ground that defendant was absent from the State, since grounds for jurisdiction in rem existed pursuant to G.S. <cross_reference>1-75.8</cross_reference>.</block_quote><page_number>Page 586</page_number>

1. Master and Servant 3 — mover of manufacturer's goods — relationship of independent contractor and employer A contract between defendant moving company and defendant Western Electric established the relationship of employer and independent<page_number>Page 639</page_number> contractor where the evidence tended to show that defendant moving company was in the business of moving personal property for the general public and possessed the necessary skills, knowledge, and expertise to execute that purpose; the materials, including the bay that fell on plaintiff thereby giving rise to this action, were under the sole control of defendant moving company; the work contracted to be performed was to be paid for by Western Electric according to the contract on the basis of pounds moved and equipment to be used; defendant mover was free to use the necessary personnel to complete the work contracted for; and Western Electric had no duties under the contract to supervise defendant mover. 2. Negligence 27 — safety code — evidence inadmissible In general, safety codes not having the force and effect of law are not admissible; therefore, in an action by plaintiff to recover for injuries sustained when a switching bay fell on him while it was being moved, the trial court did not err in excluding from evidence a pamphlet of defendant Western Electric which detailed the procedures for handling switching bays such as the one that fell on plaintiff. 3. Evidence 36 — statement by defendant's employee — hearsay — exclusion proper In an action to recover for injuries sustained by plaintiff when a switching bay fell on him while it was being moved, the trial court did not err in excluding an undated report by the job supervisor for defendant Western Electric in which the supervisor related what jobs he had assigned to whom at the time of the accident, since plaintiff did not carry his burden as to the date the report was written, and the statement was thus merely a narration of past events and therefore hearsay. 4. Negligence 57 — owner of — building in which the injury occurred — summary judgment proper In an action by plaintiff to recover for injuries sustained when a switching bay, owned by defendant Western Electric and moved by defendant moving and storage company into defendant Southern Bell's building, fell on plaintiff, the trial court properly granted summary judgment for Southern Bell, since the evidence tended to show that no employee of Southern Bell gave any instructions for the moving of the bay; there was nothing about the building itself or the room in which the bay was placed which caused it to fall; and there was no genuine issue as to any material facts in dispute between plaintiff and Southern Bell.

1. Rules of Civil Procedure 15.1 — amendment of complaint — no abuse of discretion There was no showing of abuse of discretion by the trial court in permitting plaintiff to amend its complaint. 2. Mortgages and Deeds of Trust 40.1 — action to set aside foreclosure sale — findings supported by evidence In an action to set aside a foreclosure sale, evidence was sufficient to support the trial court's finding that defendant interfered with plaintiff's efforts to survey the property in question. 3. Mortgages and Deeds of Trust 9 — purchase money deed of trust — foreclosure — release of 42 acre tract In an action to set aside a foreclosure sale and to recover a 42 acre tract which the contract to purchase provided could be selected by purchaser and released from a purchase money deed of trust without any payment being made on the balance of the purchase price, defendant was not entitled to judgment as a matter of law since the provision of the note and deed of trust which provided for release of the 42 acres was intended by the parties to be set apart and treated differently from other releases; the general terms of the provision relating to releases gave way to the specific terms of the provision relating to release of the 42 acres; and even if the formal request for the release of the 42 acres was not received by the trustee until after foreclosure and after the trustee's deed had been delivered, plaintiff was nevertheless entitled to the release since there was evidence that defendant had been informed of plaintiff's intention to obtain release of the parcel and that a survey was in progress several months previously and since the 42 acre tract was not in fact subject to the deed of trust.